In Part 2 of "The Clinton Wars," the prim independent counsel grows obsessed with
the president's sex life and cultivates an "army of spies" within the press

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May 7, 2003 1:44AM (UTC)

On the morning of January 22, 1998, the Washington Post dropped a bombshell. "The FBI," it reported, "last week secretly tape recorded former White House aide Monica Lewinsky saying that President Clinton urged her to lie about having a sexual relationship, then confronted her with the tapes to persuade her to cooperate with their investigation of Clinton, sources familiar with the investigation said yesterday ... The FBI operation helped corroborate other tapes made earlier ... and was used to help persuade Attorney General Janet Reno and a three-judge panel to authorize a new investigation into Clinton, according to sources."

The article, coauthored by Susan Schmidt and based on "sources," was like a thunderclap, stating conclusively that the president's guilt was proven by evidence already in the hands of the prosecutors. It drove the rest of the media to perceive inevitable doom. Democrats on the Hill wondered if they would soon have to send a delegation to ask the president to resign, and many on the White House staff wondered about that, too. There was no way of knowing that the article's flat assertions that Lewinsky had said that Clinton "urged her to lie" and that it "helped corroborate other tapes" were false.

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The office of Independent Counsel Kenneth Starr demanded documents and issued subpoenas, and the White House legal counsel office began to cooperate. In their conversations with the OIC prosecutors, the White House lawyers encountered an extraordinary truculence and arrogance. The prosecutors acted as though the president were a criminal, as though their case were airtight and he would soon be toppled. The White House lawyers concluded that Starr's strategy was to stage the Lewinsky story as a political shock wave that would force Clinton to resign.

Later that day, Starr appeared before a bank of microphones in front of his office to declare three times that his conduct had been proper: "We use appropriate investigative techniques that are traditional law enforcement techniques." But his illegal leaks were holding virtually the entire press corps in his thrall. At the top of his hierarchy of status were his favored reporters and producers: Susan Schmidt of the Washington Post; correspondent Jackie Judd and her producer, Chris Vlasto, at ABC News; and Michael Isikoff at Newsweek. Below them, the others scrambled for access. Starr granted it immediately to the networks and newsweeklies, but regional newspapers had to scrape by on leavings. The New York Times was second-best in his eyes to the Post. Cutouts emerged -- conservative lawyers close to the investigation -- who fed scandal-hungry reporters. A survey conducted by the Committee of Concerned Journalists on the reporting done during January 21-27 revealed that of the 1,565 statements and allegations repeated by major television programs, newspapers, and magazines, only 1 percent were based on two named sources, 41 percent had no claim of factual reporting at all, and 40 percent were derived from anonymous single sources. Matt Drudge was simply a trendsetter.

Susan Schmidt's method was to reproduce what was given her, and her reports were valuable to readers who understood that they accurately presented what Starr wished people to know. Jackie Judd was the standup on-camera talent mostly for the work of her producer, Chris Vlasto, a new type of journalist peculiar to the period. Vlasto had the intensity of a true believer but no real political ideas. He wasn't an ideologue himself, just someone who relied on ideologues for his information. Scandal and Clinton hatred, not politics, animated his work. Clinton scandal peddler David Bossie became Vlasto's friend and source. "Dave Bossie has never lied to me, and the Clinton White House has lied to me," Vlasto told a reporter from the Washington Post. "If it comes down to a question of whom do you believe, I'd believe Bossie any day." He wrote articles for the Wall Street Journal editorial page and the Weekly Standard, insisting portentously that Whitewater had darker secrets yet.

If Vlasto was an apolitical scandalmonger at ABC News, Dorrance Smith, producer of "This Week," was ultimately political. Smith had been President Bush's communications director, and his secretary in the White House had been Linda Tripp. "The Washington bureau was like an outpost of the American Spectator," an ABC News correspondent told me. "Dorrance was in constant touch with Tripp. He was calling the shots. He kept opposing views off the air and put views supportive of Starr on the air." (One of the Smith-promoted commentators, Jonathan Turley, a George Washington Law School professor with a specialty in environmental issues, testified before the House in favor of impeachment, and another, Brad Berenson, was to become an associate counsel in George W. Bush's White House. Jeffrey Toobin, the regular ABC News legal analyst, was not permitted to appear on "This Week.")

But the reporter most indispensable to the advancement of the scandal from the moment Paula Jones appeared at the conservative conference in Washington in 1993 to the breaking of the Lewinsky story in 1998 was Newsweek's Michael Isikoff. He was an avid participant who rushed to the center of the scandal, wrapped in the raincoat of intrepid detective. He was used at every turn by everyone from Paula Jones's lawyers to Lucianne Goldberg to Starr. "The players in this saga -- the accusers, the conspirators, even the president -- had all at times calculated their actions in response to what they thought I might do," Isikoff boasted in his book. But his peregrinations through the fragrant alleys of the scandal made him a useful man to many he found there.

Ken Starr had been granted his authority for an expanded investigation. He had a budget of unlimited funds. He had prosecutors, FBI agents, and private investigators. For all intents and purposes, he had no authority exercising oversight over his work. That was why he was the independent counsel.

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He also had a retinue of reporters at his call. Of course, it is against the law for a federal prosecutor to leak information that is or might be used in a grand jury. The Federal Code of Criminal Procedure 6(e) strictly forbids that sort of disclosure by a prosecutor or anyone associated with his apparatus. Witnesses are free to speak about their own testimony, but this is rare because they fear punitive retribution. Starr's men, however, had been leaking for years in their slog across the marshes of Whitewater. Starr's grand jury chamber became an echo chamber by virtue of his influence over the press. Within the grand jury room his prosecutors ruled unchallenged, and by using the grand jury process -- dragooning witnesses and leaking information or surmise about them -- Starr now dominated Washington.

Starr had believed that Clinton would be gone within days of the story about Monica Lewinsky breaking. He was unprepared for any response other than swift capitulation. And he was enraged at the first lady for labeling him political, for urging the press to cover the "vast right-wing conspiracy," and for remaining loyal to her husband. He was incensed that the president's popularity had increased rather than collapsed after the State of the Union address, and he was exasperated by news articles that described him as anything other than righteous. He still had no evidence to prove the criminal case he had trumpeted through the Washington Post on January 21 -- no evidence that Vernon Jordan had obstructed justice or suborned perjury, nor that the president had done so. Nonetheless, he believed he would somehow prevail. After all, Starr had the grand jury.

The Office of Independent Counsel was opaque to us at the White House. What little we knew we gleaned from the spare contacts the president's lawyers had with the prosecutors -- and from press accounts, which Starr's office leaked. It was like looking into a black pool. As I was writing this book, however, I encountered a prosecutor from Starr's office who explained to me what happened within it: its personnel, its political complexion, its operations, its conflicts, and Starr's actions. The firsthand account of this participant verifies much that many of us in the White House only supposed about Starr's office and contradicts published accounts of various crucial episodes written by reporters to whom Starr leaked partial information.

I also had extended on-the-record conversations with Samuel Dash, who was Starr's ethics counselor until he quit during the impeachment. Dash had been the majority counsel for the House Judiciary Committee during the Watergate investigation and a principal proponent of the Independent Counsel Act. He was a professor at the Georgetown Law Center when Starr asked him in late 1994 to act as ethics counselor. He spent perhaps a couple of days a week at the office, attended staff meetings, and spoke regularly with Starr; though he was not there every day, he had access to all the prosecution memos on all matters from the beginning.

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Starr established an atmosphere that was contemptuous of the president. Some of the prosecutors were professional lawyers who regarded sex as irrelevant to their work. They believed they were there to investigate white-collar crime. But those in charge regarded Clinton as morally unfit to hold his office. For them anything to get at Clinton was fair game. "There was a general animosity toward Clinton," I was told. "This was fueled by frustration by not getting anywhere, dead ends on other investigations. So we had to see who he is screwing." Their moral indignation and Republican politics could not be disentangled from their prosecutorial work. "I saw decisions made on moral grounds that had nothing to do with criminal grounds," Dash told me. "They believed that someone was a bad person, a sinful person, who ought to be punished for it. They distorted their judgment. Ken allowed his personal concepts of morality to interfere with the role of a prosecutor."

According to Sam Dash, Starr "could have rounded up" his initial investigation within two years of his appointment, "by 1996 or 1997. On all the issues involving the White House, fairly early he had enough information to conclude." Dash carefully reviewed the prosecution memos in each and every case: Whitewater, Susan McDougal, Webster Hubbell, the White House Travel Office, the FBI files. "They had nothing," he told me.

But far from closing shop, Starr's office was expanding its work. The prosecutors' sense of mastery after they broke the Monica Lewinsky story became an almost intoxicated belief in their own omnipotence. Swagger and supremacy were raised to ultimate virtues. Within the office, Jackie Bennett, Starr's deputy, promulgated a cult of toughness. He and his closest allies called themselves the "Likud faction," after the hard-line, right-wing Israeli political party, and dubbed others who did not always share their unbending fervor "commie wimps." They posted a chart in the office with "Likud" written above their names at the top and "Commie Wimps" at the bottom, beneath which were listed those who had not attained their plateau. In staff conferences, the soft-spoken Starr made a point of stressing the word "toughness." He would not be a "commie wimp."

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Jackie Bennett was "a crazed hard charger," according to my source, and "fascinated with the president's sex life." He had grabbed onto sex as a means of getting Clinton and had been using private investigators to conduct sex hunts for almost a year. "It was whatever worked." When Bob Woodward's article about Starr's sexual pursuit of Clinton was published in the Washington Post in June 1997, a prosecutor who was not privy to Bennett's work asked Starr if it was true. "He said it was not happening." Yet Starr publicly admitted at the impeachment hearing before the House Judiciary Committee that it had been happening. Reading Woodward's article, Sam Dash also asked Starr about it: "The response I got was, 'We're not looking into the sex life of the president. We're looking into persons who may have information. We're trying to identify them on Whitewater and things of that nature.' I accepted that."

Bennett was the chief leaker in Starr's office -- "leaking to reporters constantly," a prosecutor told me -- and had a hierarchy of favorites in the press whose careers had become reliant on him. He was especially "sweet" on Susan Schmidt at the Washington Post. Starr assured Dash that he was investigating for the source of the leaks and asked Dash if he wanted to do so as well. Dash explained that that was not his job. "I was constantly told by Ken and his staff that they weren't leaking," he told me. The leaks went on.

When Dash took the job, he received an assurance from Starr. Dash said, "He was a partisan Republican. I really believed him when he said when he undertook it he said he could push that all aside." But, said a prosecutor, "It was clear that this was a mean-spirited, politically motivated investigation. Was Ken naively manipulated? Now I don't think he was naive at all. He was just prolonging the pain to keep Clinton on the ropes. To that degree he was enormously successful. He was incredibly political. Ken is capable of saying anything so long as you don't have him on tape."

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Starr was "usually indecisive," and under pressure from those who claimed to be tougher and more resolutely conservative, he would usually cave in. He was often on the phone with Republican politicians. "He used to talk to the governor of Oklahoma" -- Republican Frank Keating -- "all the time." And he spent much of his time with his door closed, which to the prosecutors meant that he was on the phone.

He prized his reputation above all. When Starr found himself suddenly a subject of criticism, he "felt he was trapped," a prosecutor told me. "He was obsessed with public relations." Every day the prosecutors were given a packet of media accounts of the investigation from around the country-"three inches thick." "He read a great deal of it. He was very conscious of how it would impact on his career."

"He lacked a lot of judgment," Dash told me. "Starr didn't see the difference between sin and crime. His judgments were distorted." Once on the sex trail, Starr sentenced himself to presenting sex from a certain angle through the peephole. Without proof of anything else, it became Starr's only way of making Clinton's position foul. It is the easiest and basest pornographic technique to depict sex -- any sex, even between the happiest of married couples -- as sordid by using graphic detail. Microscopic, clinical documentation removes the human element as it distances and alienates the viewer (or voyeur). Starr used this method to excite and repel simultaneously. Though he did not himself question a single witness before the grand jury, he personally dictated the compilation of sexual question upon sexual question.

Sex had been a label to explain a cluster of ideas and values that had upset Clinton's enemies for decades. He had always been a screen on which were projected conservative feelings about the 1960s, the counterculture, and race. Through it all, sex had been a tracer, a code. Clinton had been accused of miscegenation -- an ancient and recurrent theme in racist Southern politics -- from the start of his career. In politics, sex is rarely just about sex. The prudish and pedantic Starr was setting off cultural depth charges.

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Several months into the Monica media frenzy, Ken Starr's leaking tactics began to backfire. On June 13, Steven Brill's magazine Brill's Content debuted, with a 28-page article, "Pressgate," that he had researched and written. "The abuses that were Watergate spawned great reporting. The Lewinsky story has reversed the process," he wrote. Brill described how the press had become Starr's "cheering section" and with "a willing, eager press corps Starr was able to create an almost complete presumption of guilt." Starr's "hubris" was "so great" that "he himself will admit these leaks when asked."

Indeed, Starr was quoted as having told Brill, "I have talked with reporters on background on some occasions, but Jackie [Bennett] has been the primary person involved in that. He has spent much of his time talking to individual reporters." There was, he insisted, "nothing improper ... because we never discussed grand jury proceedings." He rationalized the talking by saying that "what we are doing is countering misinformation that is being spread about our investigation in order to discredit our office and our dedicated career prosecutors." Bennett, he went on, had spent most of January 21, the day the scandal broke, "briefing the press." Starr named the names of reporters to whom his office had talked "extensively": Susan Schmidt of the Washington Post, Michael Isikoff of Newsweek, Jackie Judd of ABC News, and Jeff Gerth and Stephen Labaton of the New York Times. Brill concluded that Starr's "protestation that these leaks -- or 'briefings,' as he calls them -- do not violate the criminal law, and don't even violate Justice Department or ethical guidelines if they are intended to enhance confidence in his office or to correct the other side's 'misinformation,' is not only absurd, but concedes the leaks. Worse still is the lack of skepticism with which the press by and large took these leaks and parroted them."

Outraged, Starr immediately issued a statement: "Steven Brill has recklessly and irresponsibly charged the Office of Independent Counsel with improper contacts with the media. These charges are false." Two days later, he issued another such statement, stamping his foot.

Brill's article had a dramatic effect on the "leaks" case against Starr of which President Clinton, White House attorney Bruce Lindsey, and I were plaintiffs. Starr's comments to Brill were now added in our brief to the list of his other violations of Rule 6(e). On June 19, in a sealed decision, Judge Norma Holloway Johnson ruled that Starr was guilty of prima facie violations and must "show cause" why he should not be "held in contempt." We filed another brief asking the court for discovery -- the right to question Starr and his deputies under oath. On June 26, in a sealed decision, Judge Johnson granted us the power to "depose the OIC employees" -- meaning Starr and his prosecutors -- on their press contacts. Our lawyers could now interrogate his prosecutors, which would open them to damaging revelations of their illegal manipulations, to penalties for these, and even potentially to charges of perjury and obstruction of justice.

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This was not good for Starr. If discovery went forward, his office would unravel. So he filed an extraordinary sealed motion. His main argument was that his investigation depended on its press contacts for securing secret information: "It is impossible to disclose the Government's contacts and communications with press sources without revealing confidential investigative information. . . . Disclosure of the OIC's contacts with reporters may undermine the OIC's future ability to obtain information from potential sources." Here he cited a privilege "long recognized as common law, the informer's privilege." Reporters were his informers! They were, in his own description, his army of spies. While they might think of themselves as independent and intrepid seekers of truth, to him they were snitches.

In desperation, Starr appealed to the District of Columbia Circuit Court of Appeals, which granted him a stay against the July 11 court date. On August 3, a three-judge panel, weighted with two conservatives, one of them, Judge Laurence Silberman, a close friend and political soulmate of Starr's -- and David Brock's old mentor -- issued a writ of mandamus in Starr's favor. There would be no discovery. Instead the case was sent back to Judge Johnson, who appointed a special master to investigate and issue a report to her. Thus, Starr's office was now under two investigations -- one by Justice Department special counsel Michael Shaheen, who was investigating charges that Starr's key Whitewater witness David Hale had accepted money from anti-Clinton plotters, the other in the leaks case. But Starr had escaped the worst.

Excerpted from "The Clinton Wars," by Sidney Blumenthal, to be published on May 20 by Farrar, Straus and Giroux LLC. Copyright 2003 by Sidney Blumenthal. All rights reserved.

Sidney Blumenthal

Sidney Blumenthal, a former assistant and senior advisor to President Clinton, writes a column for Salon and the Guardian of London. His new book is titled "How Bush Rules: Chronicles of a Radical Regime." He is a senior fellow at the New York University Center on Law and Security.